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Sunday, June 21, 2009

SCOTUS DNA ruling not a problem for Texas, but maybe for Sotomayor

A number of readers have asked my views on last week's Supreme Court decision in the Osborne case out of Alaska where a slim, 5-4 majority ruled there is no constitutional right to postconviction DNA testing.

My first, admittedly parochial thought: Texans needn't particularly care. We have strong statutory access to post-conviction DNA testing in Chapter 64 of the Code of Criminal Procedure. According to media accounts, 46 states have DNA testing statutes on the books, and Texas has one of the best.

However, in the big picture, at least on the margins, the Osborne decision, as the Washington Post put it, "increased the risk that the wrongly convicted could be kept behind bars. Michael Landauer at the Dallas News Death Penalty Blog laid out the crux of the issue facing the court:

I'm torn. ... I have a hard time thinking it's OK to limit any evidence from being submitted that might prove guilt or innocence. Why would we do that? It drives me nuts that the appeals process is treated by some as a chess match instead of a search for truth. Once the jury speaks, that search ends and it's all about tactical, constitutional arguments, it seems.

Still, I would hate to see people who are so clearly guilty use this as a ploy to sorta roll the dice. We saw on Dallas DNA, the show about exonerations in our county, that some people really do that. They waste the courts' time just for kicks.

Landauer captures the issue precisely: This is basically about the convenience of judges and concerns about clogged court dockets vs. the right of innocent people to dispute their sentence, with a little snooty judgmentalism thrown in toward those who would "roll the dice." I replied thusly in the comment section:

Yes, on Dallas DNA and in some other instances, people who, in hindsight (after DNA fingered them), were clearly guilty tried to "roll the dice." They failed, and while their actions constitute an annoyance, it's not an intolerable one balanced against the large number of recent exonerations.

The problem is, we can't tell who is "clearly guilty," for sure, anyway, until AFTER the DNA test. Some people former Dallas DA Bill Hill thought were "clearly guilty" were granted DNA tests under Craig Watkins and turned out to be innocent!

As for those who would "roll the dice," there are already provisions in Chapter 498 of the Government Code to punish convicts for frivolous lawsuits by forfeiting their good time. (A bill to ramp up those penalties this session passed out of committee in the House but failed to receive a floor vote.) In practice, though, that seems like a different issue: It's simply untenable to deny actually innocent people access to a forensic test that could prove their innocence just because guilty people might ask for them, too.

How commonly do guilty people seek DNA testing? I've never seen a quantitative analysis, but this spring Mike Ware of the Dallas DA's Criminal Justice Integrity Unit told me that, among their DNA testing cases, the results so far had panned at roughly one-third each: Definitively innocent, definitively guilty, or inconclusive. (An example of inconclusive results might be if the DNA does not match but there were multiple suspects so the defendant can't be conclusively eliminated. Nobody knows how many different people's DNA might be on a sample until they run the tests.)

At the end of the day, if you do the tests (as Texas law requires), guilty people gaming the system will be identified and won't receive relief. However, if the state doesn't allow the test, the harm comes specifically to innocent people who've been wrongly convicted. Whatever the legalities, from a political perspective that's an insupportable stance.

The Dallas DA's office is an exception, both in Texas and nationally. If the DNA might be probative, they support requests for DNA testing through their Conviction Integrity Unit pretty routinely, even teaming up with my employers at the Innocence Project of Texas to vet all their old DNA cases, a process that's now nearly complete.

Elsewhere, though, for the most part prosecutors react defensively to requests for DNA testing because it implies their office might have got it wrong. IMO this prosecutorial impulse to vigorously oppose post-conviction DNA testing is misguided and runs counter not only to the interests of justice but the DAs' and judges' political interests. It opens them up for legitimate criticisms they cannot counter if someone they denied DNA testing to someone who was later proved to be innocent. In such situations, "I'm sorry" really doesn't cut it as a response.

Which brings us to our case study of the day on how denying post-conviction DNA testing can come back to haunt you. Go read this excellent piece from Politico by Jeffrey Deskovic, an innocent man falsely convicted of murder and rape at age 17 who was denied DNA testing by Judge Sonia Sotomayor during his habeas appeal. He spent six extra years in prison because of her decision, all for a crime DNA later proved he didn't commit. The headline of Deskovic's piece: "Sonia Sotomayor's 'empathy' isn't all it's cracked up to be." The whole article is worth a read, but these are the main conclusions he draws:

Despite Sotomayor’s rhetoric, her ruling in my case showed a callous disregard for the real-life implications of her rulings. She opted for procedure over fairness and finality of conviction over accuracy. Many of the victims of wrongful convictions serving long sentences had exhausted their appeals long before they were exonerated. In how many of those cases did Sotomayor vote to refuse to even consider evidence of innocence?

My case is far from unique in an age when the reality of wrongful convictions is well-established. We face the prospect that Troy Davis, an innocent man on death row in Georgia, faces imminent execution, absent intervention by the high court or by President Barack Obama.

I would like an opportunity to testify at Sotomayor’s confirmation hearings to let the senators — and the country — know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual’s liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.

In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of “empathy,” a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.

Judge Souter, who Sotomayor will replace, held in Osborne that there is not a constitutional right to DNA testing, which judging by her ruling in Deskovic's case appears to also be her position.

I don't know the answer to that beyond what Mike Ware told me, but since Dallas has had 20 exonerations you could extrapolate a guesstimate.

I don't work AT ALL with the attorneys at IPOT on individual cases. However, I do know IPOT and the DA's office are supposed to produce a report when they've finished vetting the old cases, which I'm told will be published sometime in the coming months. That'll be the first detailed public accounting of that process that I'm aware of.

Plato, I should add that Mike Ware was only discussing cases where DNA tests were granted when he said the provably innocent were roughly 1/3 of the total.

Because Dallas saved evidence in many more cases than other jurisdictions, IPOT and the Dallas DA Convictions Integrity Unit vetted dozens (probably hundreds) of other cases where both sides agreed DNA testing was not warranted, usually because no matter what the results it could not definitively prove innocence.

Frankly, I think there's a big benefit for DA's to partner with an innocence project to vet these old cases as Craig Watkins did - it certainly gives the decisions made a lot more legitimacy among the various stakeholders.

It must be recognized that "gaming the system" is perfectly OK. A lawyer has the obligation to get his client off using whatever legal tools are at his disposal. To ignore any loophole, however blatant, would be malpractice.

The term is not malpractice. That's for Medical Doctors. Lawyers can be charged with "ineffective assistance of council". Of course a lawyer can do all the wrong things or nothing at all and no one will find "ineffective assistance of council".

2:23: Souter had a separate dissent that joined only part of Ginsburg's dissenting opinion. While I'll readily admit to not having read any of them beyond a brief skim, according to Michael Landauer at the Dallas News, Souter said that while there may be other rights to DNA testing, he would not have concluded that there's a constitutional right.

You're right-I'm sorry doesn't cut it as a response, but when Jim Bob Darnell (who prosecuted Tim and is now a Judge) said it to Tim Cole's family in Lubbock, they embraced it and thought it was wonderful. I think a better mea culpa would have been for him to resign on the spot and present them with his frickin' robe.

FIrst, is there something in Sotomayor's ruling in the DNA case that suggests anything about her opinions on whether there's a due process right to post-conviction DNA? I would be VERY surprised if that had been an issue in that case. Maybe it was. Probably not.

Second, lawyers can most certainly be sued for legal malpractice. It is rare that criminal lawyers are sued for it, but it can happen.

The question is whether or not THE STATE (government) must provide pay for DNA testing. --------------------The 'opinion' is not a question of a "right" to have an additional DNA test, nor of the Right to submit new, previously undiscovered, facts to prove the absence of guilt beyond a reasonable doubt. ---------------------The convicted can still search for new facts and present those facts to a Judicial Official / Court. The Judicial Official(s) / Court still has a duty, obligation, and responsibility imposed by the supreme Law of the Land to review those previously undiscovered facts and to order the release of the wrongfully convicted if the new facts reveal an absence of guilt beyond a reasonable doubt (aka 'actual innocence'). The opinion only means the convicted may have to find another way to pay for it. THE STATE can refuse to pay for it. --------------------------Our people, aka 'the public', including many licensed to practice law and even those clothed with the duties of a Judicial Official, are often confused because they fail to see that the RIGHTS , of a HUMAN are inherent and inalienable, existing independent of LAW. The purpose for the creation and existence of LAW is not to 'create' Rights, but to 'secure' Rights of the Individual, and to distribute the functions of public servants in the performance of the duty, obligation, and responsibility of the entity or entities {aka THE STATE) created to secure the inherent, inalienable Rights of the Individual from THE STATE and its actors, that would violate these Rights. IE: to maintain order within the Entity (aka THE STATE) by imposing LAW upon these servants who are employed at public expense. -------------------Again: the purpose for the creation of human made law is to secure the Rights of the Individual. Not to 'grant' Rights. Nor is the purpose for the creation of Law to 'grant' royalty payments to public servants. The purpose for the creation of human made law is not to 'grant' power, but to limit he power of THE STATE, and the hands (public servants) through which it functions. There are many public servants that want to turn all law on its head to make all of us - the public employed in the private sector who fund the public treasury upon which they live -their slaves. We must stand vigilantly against all of their means utilized to do so.

The real shame here is, if you BELIEVE in this whole democracy thing land of the free, et al., then not having the right at whatever stage to prove innocence in America only goes to show all the revolution of 1775 failed in a big way. If the government was really an extension of the people, and not out to keep itself in power, then any legitimate right should be available for those that are tried for crime.

To 11:21, I didn't say Judge Sotomayor ruled on the specific issue, but if she did believe there was a fundamental constitutional right at stake, clearly she would have ruled the opposite way.

The act of denying Deskovic access to a test that, when performed, proved the defendant's innocence, shows that she believed defendants (presumably generally but definitely this one in particular) don't have a constitutional right to DNA tests that can prove their innocence.

(Un)Informed, in Osborne the defendant wanted to pay for the testing himself, the question was NOT who should pay but whether he had a right to have the test. In junior-high civics books and in the minds of 18th Century theorists, rights are inalienable. In the real world where the rest of us live, Americans have as a practical matter no legal rights beyond what SCOTUS says we have.

This was another opportunity for the federal government to weaken state's rights. SC made the right call.

By the way, is anyone here even interested in the constitution anyways? Few of your arguments relate to the constitutionality of a "right to DNA testing". Most of the arguments here are from people who simply think that the federal government should shut down "bad" state laws.

My name is Kerry Max Cook. I am the author of CHASING JUSTICE: My story of freeing myself after two decades on Death row for a crime I didn't commit.

I don't know enough about the case of Troy Davis or the tragic death of Georgia police officer Mark MacPhail Sr. to know whether Mr. Davis is innocent or guilty. What I am qualified to comment on is the fact that this case contains a rich history of legal chicanery that is being glossed over so folks can selectively pick and choose what facts they want to use to establish guilt.

It is here as a proponent of the notion that we are a Nation of laws that I weigh in. Laws designed to ensure punishment of the guilty, but also laws that theoretically are in place designed to prevent the innocent from suffering wrongful conviction and execution by overzealous prosecutions. .

One of the cornerstones of American jurisprudence is: “ …It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused….” (Code of Criminal Procedure, Article 2.01)

At the very least, Mr. Davis's sentence should be commuted from death to life imprisonment amid the serious questions that remain concerning his guilt.

In the words of William Shakespeare, I say "Let time be the judge of all offenders." If and when we make these potential mistakes, at least we can correct it.

Unfortunately, nothing we do will ever bring back the life of Officer Mark MacPhail.

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